Robert P. George: Pornography, public morality and constitutional rights

Published: Sunday, Oct. 23 2011 12:00 a.m. MDT

It is the attitudes, habits, dispositions, imagination, ideology, values and choices shaped by a culture in which pornography flourishes that will, in the end, deprive many children of what can without logical or moral strain be characterized as their right to a healthy sexuality. In a society in which sex is de-personalized, and thus degraded, even conscientious parents will have enormous difficulty transmitting to their children the capacity to view themselves and others as persons, rather than as objects of sexual desire and satisfaction.

There is more to the picture. We know that a more or less unbridled culture of pornography can result in a sexualization of children that robs them of their innocence and even places them in jeopardy of sexual exploitation by adults. Can anyone honestly deny that we have ourselves witnessed a shameful sexualization of children in our own culture? The clergy child-abuse scandal is only the tip of an iceberg. The problem of pedophile sex tourism to places like Thailand is a dirty secret that will sooner or later break upon the American consciousness and conscience.

Should we be surprised at such a thing? Think about the sexualization of adolescents in contemporary music, television, movies and commercial advertising. Consider the notorious Calvin Klein ads on New York City buses depicting young people in sexually provocative poses. And now Abercrombie and Fitch has taken things to the logically next step by peddling thong swimwear to twelve-year-old girls.

Of course, commercial advertisements are generally not defended on the ground that they constitute "art." But pornographic art can present the same problem. Sometimes obscenity or pornography is defined in such a way as to exclude anything qualifying as "art" from falling into the category. I see no reason for this, whether we are considering the issue from the point of view of possible legal regulation or from some other perspective.

Someone might argue that the artistic value of certain pornographic depictions — you may recall Robert Mapplethorpe's photograph — provides a reason (or additional reason) to immunize it from legal regulation. But such depictions remain pornographic, and their negative impact on public morality cannot be denied. Moreover, it is difficult to see how any degree of artistic merit could justify the insult to morally conscientious taxpayers when they are forced to pay for pornographic depictions.

Art can elevate and ennoble. It can also degrade and even corrupt. Whatever should be done or not done by way of legal restriction of pornographic art, we ought not to make things easy on ourselves by pretending that art cannot be pornographic or that pornographic art cannot degrade. Nor ought we to avert our gaze from the peculiar insult and injustice involved in the government funding of pornography.

There are real and substantial human and personal interests competing with those desires or interests we label "freedom of expression" when it comes to the question of art and pornography. If we, as a society, are to decide against the former interests — particularly if we are to do so categorically — we should face up to what we are prepared to sacrifice, particularly when it comes to the well-being of children. And if judges are to impose a decision against these interests on a public that views the matter differently, they should shoulder the burden of providing a legal and moral justification for doing so.

It will not suffice to make mere appeals to "established constitutional principles" or to the fact that a right to free speech is enumerated in the constitutional text while interests competing with it in the case of pornography are not mentioned. The truth is that so-called established constitutional principles on free speech and pornography are, at best, weakly justified in the cases.

A bare reliance on the mere fact of an enumeration of a right to free speech will simply confirm the validity of the arguments advanced by Hamilton and other founding fathers against the Bill of Rights — namely, that the enumeration of certain rights would distort the scheme of liberty established in the body of the Constitution by miseducating Americans about the nature of constitutional government and the moral substance of their rights.

Robert P. George is a member of the Deseret News Editorial Advisory Board. He is McCormick Professor of Jurisprudence and director of the James Madison Program at Princeton University, as well as founder of the American Principles Project. An earlier version of this piece appeared in The Public Discourse, an online publication of the Witherspoon Institute (www.thepublicdiscourse.com).

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